REGULATING EMPLOYMENT RELATIONSHIPS IN … I_2014.pdfEUROPEAN SPORTS LAW AND POLICY BULLETIN 1/2014 EMPLOYMENT RELATIONSHIPS AT NATIONAL LEVEL: ARGENTINA by Javier H. Delfino* SUMMARY:

Issue I-2014 ISSN 2039-0416

REGULATING EMPLOYMENT

RELATIONSHIPS IN PROFESSIONAL FOOTBALL

A COMPARATIVE ANALYSIS

Michele Colucci and Frank Hendrickx (eds.)

EUROPEAN SPORTS LAW AND POLICY BULLETIN 1/2014

REGULATINGEMPLOYMENT RELATIONSHIPSIN PROFESSIONAL FOOTBALL

A COMPARATIVE ANALYSIS

Michele Colucci and Frank Hendrickx (eds.)

SPORTS LAW AND POLICY CENTRE

EDITORIAL BOARD

Director and founding editor:Prof. Michele Colucci (Sports Law and Policy Centre)

Scientific Board:Prof. Roger Blanpain (Leuven and Tilburg Universities)Prof. Raul Caruso (University of Milan)Prof. Frank Hendrickx (Leuven and Tilburg Universities)Prof. Richard Parrish (Edge Hill University)Prof. Rob Siekmann (Asser Institute – The Hague)

Advisory Board:Efraim Barak, Roberto Branco Martins, Eduardo Carlezzo, Juan De Dios Crespo,Valerio Forti, Domenico Gullo, Karen L. Jones, Wouter Lambrecht, Paolo Lombardi,Felix Majani, Ettore Mazzilli, Stuart McInnes, Gianpaolo Monteneri, Omar Ongaro,José Juan Pintó Sala, Robert Pongracz, Rui Botica Santos, Stefano Sartori, ChristianSentinelli, Ruggero Stincardini, Blair Toner, Pieter Van den Brande, Wil Van Megen,Julien Zylberstein.

Assistant to the Editorial Board:Antonella Frattini

Editorial Office:Sports Law and Policy Centre SrlsVia Giovanni Pascoli, 5484014 Nocera Inferiore, Salerno, ItalyFax +39 0692912678CF/P.IVA 05283020658Web site: www.slpc.eu – E-mail: [email protected]

SLPC ©2014

CONTENTS

NOTE ON THE AUTHORS .................................................................... 11

INTRODUCTIONby Michele Colucci and Frank Hendrickx …......................................... 15

EMPLOYMENT RELATIONSHIPS AT NATIONAL LEVEL:

ARGENTINAby Javier H. Delfino ............................................................................. 19

BELGIUMby Frank Hendrickx ........................................................................... 39

BRAZILby Leonardo Andreotti Paulo de Oliveira …...................................... 57

CROATIAby Vanja Smokvina .............................................................................. 73

CZECH REPUBLICby Marketa Haindlova ......................................................................... 101

DENMARKby Jens Evald ..................................................................................... 115

ENGLANDby Richard Parrish ............................................................................. 129

FRANCEby Jean Michel Marmayou .................................................................. 145

GERMANYby Jan Sienicki .................................................................................. 173

10 Contents

ITALYby Michele Colucci ............................................................................. 201

JAPANby Takuya Yamazaki ............................................................................ 217

MEXICOby Ricardo de Buen Rodriguez ............................................................. 233

THE NETHERLANDSby Wil Van Megen ............................................................................... 249

PORTUGALby Rui Botica Santos .......................................................................... 269

ROMANIAby Geanina Tatu ................................................................................. 289

RUSSIAby Olga Rymkevich ............................................................................. 309

SLOVAK REPUBLICby Tomáš Gábriš ................................................................................. 343

SPAINby Juan de Dios Crespo Pérez .............................................................. 367

SWITZERLANDby Lucien W. Valloni and Beat Wicki .................................................... 389

TURKEYby Anil Gürsoy Artan and Murat Artan ................................................ 413

THE EU SOCIAL DIALOGUEby Arnout Geeraert ............................................................................. 437

THE COMPARATIVE ANALYSISby Michele Colucci and Frank Hendrickx .......................................... 455


NOTE ON THE AUTHORS

Leonardo Andreotti Paulo de Oliveira, Professor and Academic Coordinator ofthe Postgraduate Diploma in Sports Law at the School of Law - São Paulo/Brazil;Visiting Professor of the LL.M. in International Sports Law at ISDE in Madrid andSports Law and Policy Centre in Rome; Attorney-at-law, Director of Andreotti –Advocacia Desportiva in Brazil and TAFS Arbitrator (Court of Arbitration for SouthAmerican Football).

Rui Botica Santos, Arbitrator at the Court of Arbitration for Sport, judge at theFIA International Court of Appeal, Partner at Coelho Ribeiro e Associados andfounder of Coelho Ribeiro e Associados Timor Leste and licensed lawyer in Portugal,Brazil, Timor-Leste and Macau.

Michele Colucci, Scientific director of the Sports Law and Policy Centre (Italy)and Honorary President of the Italian Association of Sports Lawyers.

Juan de Dios Crespo Pérez, Sports Lawyer, Director of Ruiz-Huerta & CrespoSports Lawyers in Valencia (Spain). Professor at Masters, including FIFA-CIES,MESGO, ISDE, etc. Arbitrator at the ECA of the European Handball Federation.Author of several books and more than 100 articles on Sports Law.

Javier H. Delfino, LL.M, Attorney-at-law and Associate Professor of Labour andSocial Security, University of Buenos Aires.

Anil Gürsoy Artan, LL.M, Attorney at Law, Partner of Yogurtcuoglu & Gursoy Attorneys at Law, Ankara, Turkey. Murat Artan, Turkey.

12 Note on the Authors

Jens Evald, Professor, dr.jur., Aarhus University, teaches among other subjectsDanish and International Sports Law. He was chairman of Anti Doping Denmark(2006-2012) and editor of Idraetsjuristen (The Sports Lawyer), yearbook of theDanish Sports Law Association.

Tomáš Gábriš, Attorney-at-law and Associate Professor at the Comenius Universityin Bratislava, Faculty of Law, Slovak Republic. Member of the LegislativeCommission of the Slovak Football Association, member of the Scientific Committeeof the think tank Sport and Citizenship (France), member of the InternationalAssociation of Sports Law.

Arnout Geeraert, Post-doctoral research fellow at Leuven International andEuropean Studies [LINES] institute, KU Leuven, Belgium. Governance consultantat Play the Game/ Danish Institute for Sports Studies, Denmark.

Marketa Haindlova, Attorney-at-law specialized on sports law, chairperson ofthe Czech Association of Football Players, Counsel of the Czech Minister forEducation, Youth and Sport for sports issues and Chairman of the LegislativeCommittee of the European Minifootball Federation, extern lecturer at the LawSchool of Charles University in Prague.

Frank Hendrickx, Professor of labour law and sports law, University of Leuven.

Jean-Michel Marmayou, “Maître de conférences” at Aix-Marseille University.Director of studies for the professional Master in Sports Law. Director of LesCahiers de droit du sport. Business law Centre (EA 4224). Sports law Centre ofAix-Marseille. Affiliate professor Kedge Business School.

Richard Parrish, Professor of Sports Law, Edge Hill University, UK.

Ricardo de Buen Rodriguez, Founding and Managing Partner of the Law Firmde Buen Rodríguez Abogados, S.C., Mexico City, since November 2007. Professorat different Universities in Mexico City in Labour Law and Sports Law. VisitingProfessor of the Master in International Sports Law (Madrid, Spain) ISDE. Memberof the Court of Arbitration for Sport since 2002.

Olga Rymkevich, Senior researcher, Marco Biagi Foundation, University of Modenaand Reggio Emilia, Italy.

Jan Sienicki, German-Polish Sports Lawyer, LL.M. International Sports Law,resident and practicing in Berlin, Germany.

European Sports Law and Policy Bulletin 1/2014 13

Vanja Smokvina, PhD, Senior Research Assistant at the Faculty of Law, Universityof Rijeka, Croatia, and Visiting Research Associate at the Edge Hill University,Centre for Sports Law Research, UK.

Geanina Tatu, Romanian & French Sports Lawyer, LL.M. International SportsLaw (ISDE-Madrid), Master II Droit du Sport (Aix-Marseille University).

Wil Van Megen, FIFPro’s Legal Director and lawyer at MHZ-advocaten.

Lucien W. Valloni, Ph.D., Partner at the Swiss law firm of Froriep in Zurich andhead of its litigation & arbitration as well as sports law practice group.

Beat Wicki, Attorney at Law, is Associate at the Swiss Law Firm FRORIEP andmember of its IP/IT practice group and Ph.D. candidate at the University of Zurich.

Takuya Yamazaki, Japanese Attorney-at-Law, is the founder and Managing Partnerof Field-R Law Offices, Member of the FIFA Dispute Resolution Chamber andDeputy Chairman of FIFPro Division Asia/Oceania.


INTRODUCTION

Sport performs several functions in society: an educational, a social, a cultural aswell as a recreational function. Nevertheless sport is also a business: in economicterms, it is a rapidly growing area accounting for 3% of world trade and is one ofthe sectors most likely to generate new employment in the near future.

International and national sports associations regulate this business in anautonomous way and adopt private regulations or by-laws, including organisational,disciplinary rules as well as rules of play. However, the trend towards moreprofessionalism in sport and its growing economic and relevance have prompted anincreasing reliance on legal rules adopted by governments and internationalorganizations such as the United Nations, the Council of Europe, and the EuropeanUnion.

Sport is also considered as a “special sector” and could even be seen as aspecific ‘labour market’. In a professional sport context, athletes and players canbe considered as “special workers” and their clubs and teams as “special employers”.The specific nature of sports, leading to the question of how public regulation andprivate sport rules relate to each other, is also an issue where employmentrelationships are concerned. For example, how do employment law rules interrelatewith questions of athlete selection, remuneration, discipline or contracting? Howdo laws and regulation support and implement players’ or athletes’ unionism orcollective bargaining that may take place? To what extent are team members seenas regular employees, or individual players as self-employed persons?

In this book, we take stock of the rules and problems that exist whencombining the law on employment relations and specific sport contexts, andparticular sporting rules. The focus will be on professional football, a field of world-wide economic and social interest, where club-player relations are rather wellestablished and structured through international sporting bodies and a large numberof problems and issues have already occurred. Professional football is a field wherethe interaction between public employment regulation and private sports regulationis most relevant. The aim of this book is to examine the question of how the legalregulation of employment relations are applied or adapted in the context ofprofessional football and to what extent could aspects of sport specificity be identifiedor established to justify a special legal regime.

The editors would like to thank Antonella Frattini for the editorial assistanceand James Carey for the proof reading of the book.

Brussels, 31 October 2014

Michele Colucci Frank Hendrickx

_____________________________EMPLOYMENT RELATIONSHIPS

AT NATIONAL LEVEL


EMPLOYMENT RELATIONSHIPS AT NATIONAL LEVEL:ARGENTINA

by Javier H. Delfino*

SUMMARY: Introduction – 1. Employment regulation and football structures – 2.Sources of Law and approaches – 3. Individual employment relationship inprofessional football – 4. Medical and doping issues – 5. Player Transfer – 6.Social security principles (unemployment and pensions) – 7. Labour disputesettlement – Conclusion

Introduction

Argentina applies federal law to labour regulations - both individual and collectiveones, as well as to social security protection.

The current professional football player legal employment status isembodied in mandatory rules derived from the State and collective bargainingagreements signed by labour unions and employers. In contrast, amateurism preventsthe employment principle. The relationship between sports entities and athleteswho play football as a professional activity is governed by a specific law andassisted by general employment law in those aspects that have not been regulated.In addition, collective bargaining agreements are a key factor. Moreover, there area variety of rules set by the State, the Asociación del Futbol Argentino and FIFA.

As with many other countries, sources of sport law in Argentina are bothpublic and private. Athletes can have amateur or professional status according tothe sport discipline. Amateurism is the main rule regarding sport practice in thiscountry and professionalism is the exception.

Despite the increase of economic profits in some sport practices, thelegal entity remains as a non-profit organization. Sport governing bodies play asignificant role in the thriving business of sports, and their role goes far beyond theadoption of playing rules, yet they are still not commercial entities.

The Asociación del Futbol Argentino (AFA) is the main entity that controls____________________* Lawyer and Associate Professor of Labour and Social Security Law at Universidad de BuenosAires, Facultad de Derecho, Argentina.

20 Javier H. Delfino

the organization and practice of football, including members of all the local clubs.Argentina has five well known clubs: Boca Juniors, River Plate, San Lorenzo,Independiente and Racing, but all the teams around the country have producedworld class football talents. Any top club with an international scouting system willseriously consider football players from this country.

1. Employment regulation and football structures

1.1 Employment regulation

There is no federal code of laws regarding employment such as there is in civil,commercial or penal law. However, there are many laws in force, enacted by thefederal government and effective nation-wide. Employment relationships, in theirmost general perspective, are governed by Law 20744 (LCT) enacted by the FederalCongress in 1974, and its terms have been amended several times throughout theyears.

LCT governs employment relationships, from hiring to termination, withmandatory rules. A vast majority of concerns regarding the rights and duties ofemployees and employers have been covered by this statute.

The statutory coverage includes every person in the lawful service ofanother who has the right to manage the work produced, where there is a paymentin compensation for it, and under any form of employment contract, be it expressor implied. This employment relationship is defined as salaried work (in contrastwith an independent contractor) and will be regulated by the LCT and thecorresponding collective bargaining agreement. There are some activities that areexcluded and some others that have particular statutes.

There is an iuris tantum presumption in favour of the existence of salariedwork in the case of services provided to a third party. Therefore, anyone wishingto maintain the contrary will have to produce evidence to support such position.

The following matters are to be considered when determining whether theemployee is a salaried worker or an independent contractor: i) the extent of controlover or management of the work; ii) the power to discipline; and iii) the extent ofthe economic position. Nevertheless, there is no agreement between scholars orcourts about which of these is the controlling factor.

LCT provides four alternatives for hiring employees: (a) permanent contract,(b) part-time scheme, (c) fixed term contract or (d) contract for a specific activity.(a) A permanent contract is presumed to be on full time basis and has an indefinite

term, no written contract is required and the first 3 months are defined as atrial period.

(b) A part-time contract is when the daily activity is less than 2/3 of the customaryworking hours within the corresponding activity. In such instances thecompensation may not be lower than the proportional compensation for anemployee performing services on a full-time basis. The cap for the number of

Employment relationships at national level: Argentina 21

part-time employees to be hired must be determined by the CBA. Also, nowritten contract is required.

(c) A fixed term contract requires a written contract specifying the fixed term. Italso requires an extraordinary reason to justify such a hiring alternative. Themaximum cumulative term is 5 years per employee and there is no trial period.If an unfair dismissal occurs before the agreed term is reached, the employeeis entitled to the corresponding severance plus a special compensation that isusually determined by calculating the pending wages until the agreed date oftermination.

(d) A contract for a specific activity may be used when extraordinary and transitoryproduction demands or requirements are foreseeable, although a specific termfor the contract termination cannot be foreseen. This kind of contract will endwith the execution of the job for which the employee was hired, and so thereis no trial period. A written contract is required with the clear specification ofthe causes that have led to this kind of hiring. There is no obligation to givenotice of termination and no severance payment or compensation is owedwhen the contract is terminated.

The employment regulation considers fixed severance for dismissal withoutcause as being equal to the best salary from the previous year multiplied by theyears worked under such employment, unless it is determined that no severance isdue. The best salary has a cap in accordance to the relevant CBA.

In order to have a full understanding of the legal framework it is importantto study the corresponding Collective Bargaining Agreement, as its terms aremandatory for the activity.

Collective Labour Law, foreseen in the Magna Carta and several specificlaws; regulates relationships, rights and duties among the collective labour parties:unions, and the employer or a group of them.

This law provides that, despite the terms of the CBA, its provisionsremain applicable by ultra-activity until another CBA is signed to replace it. Fortheir enforcement, the CBA needs to be recognized by the National Ministry ofLabour Affairs.

According to Section 2 of the LCT; Public Office employees, agriculturallabourers, and domestic service are excluded from its ruling. On the other hand,there are several activities that are not excluded by the LCT but have a separatestatute that governs such activities: construction workers (Law 22250), travellingsalesmen (Law 14546), professional journalists (Law 12908), press companiesadministrative employees (Law 12921), professional musicians (Law 14597),professional football players (Law 20160) and hairdressers (Law 23947), amongmany others.

1.2 Football structure

From the historical perspective, the AFA was the first football association to appear


in South America, coming into being in 1912; and also became the first one inAmerica to be affiliated to FIFA.1

AFA is a private entity formed by local football clubs, subject to thegovernance of the Civil Code for associations. It is an upper level association or, inother words, it constitutes a federation.

Under Section 2 of its bylaws, the AFA promotes the practice of footballin Argentina by coordinating the actions of all the affiliated entities in accordancewith FIFA’s provisions.

Furthermore, Section 3 allows the AFA to achieve its goals by federatingwith other sports entities in its country or abroad. The AFA is the exclusiverepresentative of Argentinean football at international level and especially withinFIFA as an active member.

As a consequence of its federation status, the AFA has a dual role:- From the private governance view, the AFA is the governing body of football

in Argentina, and therefore affiliated clubs recognize and delegate to AFA thenecessary power to achieve such purposes.

- From the public governance view, sports federations are empowered by thegovernment to pursue certain activities which have a public nature. This is aconsequence of the government’s increasing interest in the sporting phenomenon,which at first was purely governed by private regulations.2

It is possible to summarize the AFA’s domestic functions as the following:(i) to organize Argentinean football leagues; (ii) to cooperate with the State; (iii) toexercise disciplinary authority in such sport; (iv) to exercise the governing authorityover football in the provinces (through the Consejo Federal de Fútbol - CFF); (v)to appoint members of the national teams; and (vi) to appoint clubs participating ininternational tournaments. At an international scale, the AFA has (i) exclusiverepresentation of the discipline, and (ii) collaborates in the organization of internationalcompetitions that take place in its country.

The non-profitable character as a distinctive trait of the civil organizationsis to be understood not as a prohibition from obtaining economic results, but as theimpossibility of distributing profits among its members.3 This applies not only tothe AFA but also to clubs, as they are non-profitable organizations as well.

Consequently, the main issue would not be the form of the mentionedactivity but, fundamentally, the destination of its profits or earnings. In this sense,there is no distribution of profits or earnings among people with merely privateinterests, but as a matter of fact, these profits are maintained in the institutionalprivate property in order to increase the chances of achieving purposes of general____________________1 AFA origins, (last seen 25/08/2014). www.afa.org.ar/index.php?option=com_content&view=article&id=8655&Itemid=243.2 Cazorla Prieto Luis M., Deporte y estado, 1979, Labor-Politeia; cited by Schmoisman Mario A.,Dolabjian Diego A., Estudios sobre derecho y deporte, T. I, Córdoba, Argentina, 2009, LesnerEditora, 383.3 Schmoisman Mario A., Dolabjian Diego A., Estudios sobre derecho y deporte, T. I, Córdoba,Argentina, 2009, Lesner Editora, 237.


welfare. This means that there is no lucrative intention that ought to be consideredforbidden to civil associations.4

According to Section 33 of the Civil Code, private associations are thosewith general welfare as their main objective. That wording leaves no room to inferthat a non-profit association cannot own assets in a corporation. Although the maingoal of the association is to promote general welfare, this does not mean that itcannot carry out profitable activities in order to be able to afford costs. In otherwords, being non-profitable means that the association cannot distribute profitsamong its members but it is not a barrier that could prevent funding through otherlawful activities.5

The Argentinean football leagues are classified in two large categories -professional and amateur - and subdivided into different levels. In accordance withthe last AFA decision on this regard,6 professional football leagues are: Primera A,Nacional B, Torneo Argentino A, Primera B, and Primera C. Amateur footballleagues are: Torneo Argentino B, and Primera D, and the rest of the ordinary leagues.

2. Sources of Law and approaches

The sources of law regarding sports depend on the regulated matter. For instance,the organization of the leagues, clubs and structure itself are governed by privatelaw as the Civil Code provides a lot of room in that sense and there are fewmandatory rules. However, issues regarding relationships between athletes andclubs and social security taxes are governed by mandatory law issued by the nationalgovernment.

2.1 Specific laws on sport and football

The core of public regulation on sports is incorporated in Law No. 20655 (sportsregulation), Law No. 24819 (fair play in sports and drug-free sport) Law No.24192 (prevention and punishment of violence in sporting events) and Law No.25284 (special system for the administration of entities with economic problemsand administration of trust under judicial control). In addition, the recent Law No.26573 was enacted to promote economic support and training for performanceathletes of a high level.

Since 1969, Courts have ruled that the relationship between football playersand clubs is governed by employment law.7 However, there is no parallel with____________________4 Cahián Adolfo, Las asociaciones civiles en la República Argentina, 1998, La Rocca, 56, quotedby Schmoisman Mario A., Dolabjian Diego A., Estudios sobre derecho y deporte, T. I, Córdoba,Argentina, 2009, Lesner Editora, 265-266.5 Clariá José Octavio, Nota a la Resolución de la Inspección General de Justicia en el expedienteBoca Crece S.A., 2005, elDial.com, DC71F.6 In accordance with AFA Executive Committee’s decision published on Bulletin 4836/2013.7 “Ruiz S. c/ C. A. Platense s/ Despido”, decided by the CNAT as a whole under Plenario No. 125,in October 1969.


other sports activities such as volleyball, handball or basketball. In these sports,courts have ruled that the practice is mainly amateur and therefore the philanthropicinterest of the players for their own improvement as persons is the motive andprevents the application of employment law.

Later, a specific statute was enacted for those athletes who play footballas a professional activity in order to regulate its particular employment relationship.This is ruled by Law No. 20160, but also by the general Employment Law No.20744, and the Workers Compensation Law No. 24557.

In 2009 the latest CBA No 557/09 was approved, amending the previousone - No 430/75, signed by AFA and the Union of Amateur and ProfessionalFootball Players (Futbolistas Argentinos Agremiados – FAA). This contains a lot ofspecific and mandatory regulations relevant to the object of this study.

2.2 Amateurs

As mentioned before, amateur players are those who are not hired by a club througha contract and do not perform in leagues considered as professional. In the majorityof sports disciplines, athletes have an amateur status with no labour law protection.Such status is governed by private law.

2.3 Semi-professionals

No semi-professional category is recognized. There are only two alternatives: amateurand professional players. These categories, therefore, determine the applicable lawand regulations.

2.4 Self-employment

According to legal regulation on professional football, it is not possible for playersto be self-employed. Provisions imposing the employment relationship aremandatory.

2.5 Voluntary work

Voluntary work is regulated by Law 25855 which covers the activity of thosecitizens that help entities without any compensation whatsoever. It is forbidden torender services as employee under such contracts, and violation of thiscommandment results in the enforcement of LCT provisions.

2.6 Discrimination law and equal treatment

The widest and most general anti-discrimination and equal treatment law is No23592. It provides that whoever arbitrarily impedes, obstructs, restricts or otherwiseimpairs the full exercise of recognized rights and fundamental guarantees granted


by the Constitution shall be obliged, at the request of the victim, to repeal suchdiscriminatory act or cease to perform it and to repair any moral and materialdamage caused.

For the purposes of this Law, certain discriminatory acts or omissionsbased on grounds such as race, religion, nationality, ideology, political or unionopinion, sex, economic status, social status or physical characteristics are particularlyconsidered.

In addition to such regulations, the LCT establishes, in accordance withSection 17, that any discrimination between workers on the basis of sex, race,nationality, religious, political, professional or age is forbidden. Furthermore, theemployer must treat all workers equally in identical situations. Unequal treatmentis forbidden when based on sex, religion or race, but not when this differentialtreatment comes from efficiency, due diligence or reduction of work, in accordancewith Section 81 LCT.

3. Individual employment relationship in professional football

3.1 Essential elements and legal qualification

The employment contract of a professional footballer is a fixed-term contract withthe possibility of renewal. This contract has the following characteristics: (i) theexistence of dual disciplinary power over the worker, (ii) the limitation of the lifetimeof the worker in such activity, (iii) notes of exclusivity, (iv) the compensationmode, and (v) a parallel to performing artists’ situation.8. From the other perspectiveit is important to point out that there are a limited number of entities with whichplayers may sign a contract, which implies a particular subordination in this industry,similar to how cartels function in a monopoly.

Law 20160 does not provide legal qualification for football players; itdelegates this definition to the executive branch. However, there is no decree onsuch matters, but according to the relevant CBA, a professional football player isconsidered a person who binds himself to play football for a fixed term as a memberof a sporting entity which participates in professional tournaments, in exchange forpecuniary compensation.9

Therefore, the legal qualification for the football player is the one providedby the CBA.

Finally, there is a restriction regarding the nationality of players. In thissense, foreign players may be part of a squad but they are limited to up to 4athletes per club.10 However, this cap is not applicable for those foreign players____________________8 Fefer Sergio, Cap. VI Régimen de futbolistas profesionales, en Tratado de Derecho del Trabajo,t. V, Ackerman (dir.), 2006, Rubinzal Culzoni, 396/7.9 Delfino, Javier, European Sports Law and Policy Bulletin – International and ComparativeSports Justice, Michele Colucci and Karen L. Jones eds., 2003, 238.10 This restriction based on the nationality might be attacked at Court as it may arise constitutionalissues (rights to work, to be treated equally). In such opinion, it is possible to cite: Confalonieri, Juan


who have been performing in at levels lower than the first team of the club for aperiod no less than four years before they reach the age of 21 years old.

3.2 The employment contract

The employment contract must be written and registered in the AFA and FAA. Theagreement must clearly detail the compensation. According to the CBA, noprofessional footballer may take part in an official game if the contract has notbeen previously registered. The registration process is governed by Law 20160 aswell as the CBA, and complied when submitted by any of parties involved.

Nevertheless, it is possible to prove the existence of such contract basedon the actual services rendered as professional football player.

According to Section 40 of the LCT, the object of the contract shall beconsidered forbidden when legal regulations or procedures would restrict theemployment of certain group of people performing certain tasks, for certain periodsof time or under certain conditions. In any case, this prohibition is only addressedto the employer and will in no case affect employee rights.11

The only parties legally authorized to sign a professional football playeremployment contract are: (i) an AFA affiliated club, and (ii) an athlete aged 16years old up.

The term for a professional football player contract go from 1 to 5 years,with no extending option, as the CBA provides.

It is possible to execute a promotional professional contract for thoseathletes aged between 16 and 21 years old. This alternative provides the possibilityof creating a one-year contract with the option for the club to extend it for twomore years. However, for those athletes who have reached the age of 21 years,this promotional contract can only be extended once for a single year. In order toexecute the extension clause, the club must provide a salary increase of at least20%.

In the event of any contract with an extension clause signed by playerswho have reached the age of 22 years, it shall be considered null and void (evenwhen AFA has registered it) and the player is to be declared free agent and able tosign contract with any other club.

Regarding the lowest professional football league (Primera C), clubs musthave a minimum of 15 professional contracts in the squad.

As usually happens in this activity, player agents have an active role inthe scouting and contracting process. In this case, the contract must contain areference to the agent involved in the contract negotiation whether acting on behalf____________________A., Jugador de fútbol professional, en Tratado de derecho del trabajo, Vazquez Vialard A. (dir.),1985, Astrea, 246; and De La Riva, Amalia, La relación de trabajo de los futbolistas profesionales,en Relación de Trabajo, t. V, Garcia, Héctor Omar (dir.), 2013, Ediar, 185.11 Delfino, Javier, European Sports Law and Policy Bulletin – International and ComparativeSports Justice, Michele Colucci and Karen L. Jones eds., 2003, 241.


of the club or player. The agent must comply with specific regulations and has tohave the AFA’s authorization.12 Players under the age of 18 must have parentalconsent to engage in such a contract. There is an exemption for such authorizationwhen the player’s agent is a practicing lawyer in Argentina and has the relevantpower.

3.3 Player rights and obligations

Players, as employees, are entitled to compensation plus a statutory annual bonus(“aguinaldo”), paid vacations, paid leave in case of illness, and other legal means toforce the employer to fulfil all the obligations that arise from law, the CBA and therelevant employment contract. In addition, professional football players are entitledto social security benefits.

In relation to the performing aspect of the game (football career), it isgranted that once the player has reached the age of 21 or has achieved the status ofprofessional player, they have the right to perform in the top or second team of hisclub, but no lower than that.

In the case of a breach of contract based on salary or any sum of moneybeing due to the athlete, it is possible to restrict the squad from any new hiring untila payment agreement is reached.

On the other hand, players have to comply with their duties regardinggood faith as employees; in particular:- to play football only for the contracting club or teams that represent the AFA,

in accordance with the relevant rules;- to maintain and improve the condition of his sporting abilities, and his physical

and psychological well-being in order to perform efficiently. If these abilitiesand conditions diminish or are lost at the player’s fault, he shall be responsiblefor gross negligence;

- to play efficiently and to the best of his abilities and strengths;- to adapt his lifestyle to the demands of his contractual obligations;- to attend any meeting requested by the club or the AFA authorities, and to

play in all matches in the location indicated without regard to the date, timeand place where the match takes place;

- to comply with all international sports rules that regulate football activity, andthe sports regulations of the club and AFA, as long as they are not contrary tolaw;

- to train as determined by the person appointed by the AFA to such effect. Thisobligation shall subsist despite any disqualification of the player; also, theplayer cannot excuse himself from attending training sessions due to anotherjob obligation unless expressly permitted by the club. The club shall be theonly one to determine the date, time and place for training, according to practices

____________________12 AFA – Boletin 3606, Regulations Governing the Players’ Agent Activity.


and customs, as well as any other change it deems necessary in exceptionalcircumstances, provided that these said changes do not damage the player’sinterests;

- to notify the club within 24 hours of any circumstance that alters his physicalor psychological well-being; the player shall accept medical assistance fromthe club’s physicians and follow any indication prescribed. In the case ofdisagreement, the player may request a three-medical-doctor-panel (MedicalExamination Board) to be appointed: one designated by the AFA, one by thecorresponding club and a third doctor appointed by the player himself.

- to travel, without bearing the cost, to every location where the club or the AFAis to take part in a sports event, be it within the country or abroad;

- o behave properly during matches, accept instructions given by the club, respectthe audience, sports authorities, teammates and opponents;

- to pursue fair play: any sanction decided against him by a competent authorityresulting in his inability to play shall be sufficient ground for suspension of hisrights to receive payment for as long as the sanction lasts, irrespective of hisobligation to continue training in order to keep his abilities and himself in thebest physical and psychological condition.

3.4 Club rights and obligations

Clubs are in a unique position for employment based on two aspects: extensiveregulation regarding player exclusivity and disciplinary power over an employeewith a short and limited working life.

Moreover, clubs have to comply with their duties regarding good faith asemployers; in particular:- to pay all the amounts agreed by contract even if the club no longer requires a

player’s services;- to grant players one day per week to rest and, annually, a leave of absence for

30 days with the right to be paid his monthly salary as established by contract.Unless otherwise specifically agreed, days of the leave shall be consecutivedays;

- to provide full medical attention (including psychological and rehabilitationservices) to guarantee a player’s efficient sporting performance;

- to obtain insurance policies to cover for a player’s compensation in case ofgeneric or specific disability (full or partial) or player’s death during competitions,preparation events or transportation (irrespective of the means used or thelocation where it took place) pursuant to what is established by Law No.24557;

- to pay expenses for transportation, accommodation and food when a playertravels in order to honour contractual obligations.

- to make a detailed report on a monthly basis to the AFA of the conceptsincluded in the compensation paid to its players.


3.5 Remuneration

As stated before, the employment contract for football players must clearly detailcompensation items. It is a mandatory combined package of: (i) monthly salary; (ii)bonus for points won in official matches; (iii) bonus for friendly matches won ortied; and (iv) bonus for qualification for national or international competitions ortournaments in which the contracting club plays or may play.

The CBA establishes the mandatory minimum amounts of such benefitsclassified by league division. In addition, it establishes the minimum benefits forwinning points in the league.

The monthly salary must be paid by wire transfer within four businessdays after the end of the related month. Any benefits for points, games, goals,wins, or certain table position will be paid within the five subsequent business daysafter the respective event.

A special bonus is granted for those players who have actually performedin the tournament in which the club has become champion or achieved leaguepromotion.

Besides that, the CBA establishes the obligation for parties to set bonusamounts for performing in non-official or international tournaments (like CopaSudamericana or Copa Libertadores de America), or any other kind of internationalcompetition. However, the CBA does not determine a minimum amount orcalculation method; it only refers to the free negotiation of the parties. If there is noagreement, the matter shall be submitted to arbitration by the Ministry of LabourAffairs whose decision will be final.

On the other hand, there are provisions made for the event of promotionor relegation. In that sense, if the club is relegated to a lower division, it is possibleto reduce players’ compensation by 20% for the period of time that the club remainsin that division, although the compensation cannot go under the minimum legalwage. If the club moves to a higher division, the player’s salary shall be increasedby 25% as from January 1st of the year that the new season starts.

In the event of a conflict between the wage stated in the registered contractand the actual one, the one that is best for the player will prevail. The sameprinciple applies when this conflict comes from different hierarchical regulations(Law, CBA, and Individual Contract). 13

3.6 Working time

There are no particular provisions regarding working time for professional footballplayers. Therefore, this is covered by general regulations. The legal working timeis eight hours per day or forty-eight hours per week.____________________13 Delfino, Javier H., Fuentes de Regulación. C. VI, in Remuneraciones, Rodriguez Mancini, Jorge(dir.), 2013, La Ley, 97.


According to the CBA, a minimum rest of 12 hours between the end of aday and the beginning of the following one is to be granted to a player. In addition,a minimum resting period between matches of 48 hours has been established.

On the other hand, Law 20160 grants a weekly resting day, and a 30days paid leave per year. Unless otherwise agreed by parties, leave days will beconsecutive.

3.7 The end of the employment relationship

According to Law 20160, the employment relationship shall be terminated by: (i)agreement of the parties; (ii) expiration of the contract period; (iii) breach of contract.

The parties are able to terminate the contract by mutual agreement at anytime, in which case the player will be free to sign with any other club. This agreementhas to be executed by public notary or before the administrative authority forlabour affairs, under penalty of considering it null and void.

In the event of contract term expiration, if the club does not execute theextension clause, the player will be free to sign for another club and no severance isdue.

There is no mention of the alternative of resignation; thus, it shall beconsidered legal and in such event similar consequences to those of terminationbased on just cause shall be applied.

3.7.1 A) Termination based on just cause

Clubs may terminate the contract based on just cause when players fail to complywith their duties. This shall be applied under restrictive criteria. According to Law20160 a disqualification sanction (unable to be given until December 31st of thefollowing year) is applicable for major breach due to a player’s fault; however,such provision is considered invalid.14 The CBA expressly makes any disqualificationclause void on such grounds. In the event that such termination causes damages tothe club, it may require a labour court to establish the appropriate economiccompensation to be paid by the player.

On the other hand, players are entitled to construe a dismissal as beingbased on just cause when the employer is the one in breach of contract. In thiscase, clubs must pay full compensation for the contract plus severance. Anotherconsequence of termination based on unjustified club breach of contract is that theplayer shall be freed from any contractual obligation. Therefore, the player has theright to sign a new contract with any other club within the country or apply for acertificate of international transfer.____________________14 In such opinion, it is possible to quote: Confalonieri, Juan A., Jugador de fútbol professional, enTratado de derecho del trabajo, Vazquez Vialard A. (dir.), 1985, Astrea; and De La Riva, Amalia, Larelación de trabajo de los futbolistas profesionales, en Relación de Trabajo, t. V, Garcia, HéctorOmar (dir.), 2013, Ediar; and, Fefer Sergio, Cap. VI Régimen de futbolistas profesionales, enTratado de Derecho del Trabajo, t. V, Ackerman (dir.), 2006, Rubinzal Culzoni.


3.7.2 B) Termination based on unjustified cause

Clubs may also terminate the employment contract without justified cause.Consequences are the same as in the construed dismissal.

3.8 Disciplinary rules and sanctions

The dual disciplinary power over the football player comes from the relevant clubas employer and the AFA as competition authority. It is no longer possible for clubsto be legally able to impose fines on athletes, in accordance with the CBA.

Disciplinary rules are governed by the LCT. In order to consider sanctionsas valid ones, they have to be based on justified cause, have a fixed term and benotified in writing to the employee. The maximum suspension for disciplinary reasonsis 30 days in one year, counting from the first suspension. In case of violation ofsuch limits, the employee is entitled to construe the dismissal as being withoutjustified cause, or file the case to the courts. Clubs must have made all paymentsdue to the player in order to be authorized to impose any suspension.

Players are liable for damages, but fines are forbidden in an employmentrelationship.

The AFA is empowered to sanction the activity of a football player assuch, but not those aspects that concern the employment as it is a third party insuch a relationship.15

The AFA’s Disciplinary Tribunal is the competent body to apply disciplinaryrules and determine sanctions in accordance with FIFA’s Disciplinary Code, and itsruling shall be appealed to the Court of Appeals of the same association. As realityshows, those appeals against sanctions on players are usually filed by the relevantclub, and it is therefore denied on grounds of lack of locus standi of the appellant.

4. Medical and doping issues

Regarding medical issues, there are two alternatives based on whether the accidentor illness is work-related or not. Medical issues caused by work are covered bymandatory insurance according to Law 24557.

In any case, professional football players prevented from performing byany injury or illness (during practices, matches or while travelling to or from work,or even non-work related), are entitled to receive compensation until medicaldischarge is prescribed regardless of the contract expiration date.

In the event that a player gets medical discharge and at the time theybecome free agent, the transfer windows is closed; the AFA must grant a period of____________________15 Based on such clarification, there are opinions against the idea of dual disciplinary power. This dualpower might be more fictional rather than actual. De La Riva, Amalia, La relación de trabajo de losfutbolistas profesionales, en Relación de Trabajo, t. V, Garcia, Héctor Omar (dir.), 2013, Ediar,191.


an additional 20 working-days to help their incorporation into a club of their choice.Regarding doping issues, the International Convention against Doping in

Sports (which was adopted by UNESCO) is mandatory in Argentina in accordanceto Law 26161. Furthermore, Law 24819 defines doping as the use of forbiddensubstances or methods by an athlete, regardless of the quantity applied, before,during or after a competition. The forbidden methods and substances are detailedand amended regularly by the Comisión Nacional Antidóping.

Any breach of regulations established by Law 24819 by any of the sportsentities registered at the Registro Nacional de Instituciones Deportivas in accordanceto Law No. 20655, and/or those recognized by the AOC and/or the ConfederaciónArgentina del Deporte, shall imply the cessation of their participation in the FondoNacional del Deporte and in the Registro Nacional de Instituciones Deportivas.

Regarding the athlete’s offences, the following disciplinary sanctions shallbe imposed:- ineligibility for a period of between three months and two years to carry out

federative sports activity, effective from the date of the first offence;- ineligibility for a minimum period of two years in the case of reoffending, as

well as disqualification or forfeiture of points according to the nature of thesports competition;

- in order to determine reoffending, violations committed abroad by the athleteshall be taken into account, whenever the corresponding sanctions have beenimposed by international sports federations and/or the national sports federationsrecognized by the corresponding international federation.

- should the athlete refuse to undergo this doping test, it shall be considered aspositive according to FIFA’s regulations.

On the other hand, it is within the jurisdiction of each federation todetermine if athletes are to be punished by disqualification or forfeiture of points,taking into consideration whether the sport competition is practiced individually orin teams. If the athlete’s sanction is based on narcotics, the sport’s institution shallimpose a safety measure for the health of the athlete, in addition to the sanction itconsiders appropriate, through the corresponding administrative body. Such measureshall consist of a detoxification and rehabilitation treatment for a period deemednecessary. The athlete shall resume sports practice afterwards.

In relation to football practice, the procedure is governed by the AFA’sAnti-Doping Control Regulations, in accordance with FIFA’s policy. According tothis, at least two athletes per team who have actually performed in the relevantmatch are eligible for a doping test on a random basis.

After analyzing the retest, the case will be referred to the AFA’s DisciplinaryCourt for its ruling, which shall be appealed to the Court of Appeals of the sameassociation.


5. Player Transfer

5.1 Transfer rules

There is no restriction for transferring contracts, but in these cases players must beawarded with a percentage of the value involved in the transaction. As in manyother countries, transfers have effect within a transfer-window term. This onlyapplies when signing players.

The transferring club must have the player’s expressed consent to carryout the transaction. The minimum percentage that the player must receive is 10%of the total amount paid for the transfer of the contract. This 10% clause has beenenforced on clubs and the AFA by courts.16

The percentage that is to be paid to the player has been increased by thenew CBA to a minimum of 15% of the total amount of the transfer of the contract.

Later, the player must arrive at a new employment agreement with thenew club.

On the other hand, the temporary assignation of the contract to anotherclub for a maximum period of one year is also allowed. The temporary assignationshall not affect the payments established in the original contract, and the assigningclub shall be jointly bound to the fulfilment of the economic obligations of theassignee, until the original contract is fully performed.

The player’s consent is only required to transfer federative rights.Economic rights are exclusively on the club’s side.17

According to Section 8 of the CBA, it is forbidden to transfer the footballplayer’s federative rights in favour of any person or entity that does not participatein any of the tournaments organized by the AFA.18____________________16 “Calderon Jorge Adrian c/ Asociacion del Futbol Argentino y otro”, decided by the NationalCourt of Appeal on Labour, No. IV, on October 31, 1979, D. T. XL-1980-353; and other cases nowomitted, cited by Confalonieri Juan Angel, Futbolistas profesionales, Revista de Derecho LaboralNº 2003-2, Rubinzal-Culzoni, 205.17 The Supreme Court of Buenos Aires has validated the transfer of economic rights in a footballplayer transfer. It has been settled that is not necessary to include the player´s consent, as economicrights (referring to utilities derived from future transfers) are part of the sport clubs´ assets, and itstransfer shall not be considered as a contract on third parties, for it only implies the football player asa producer of economic results in benefit of the sporting entity. This concept structure is opposed tothe one regarding the transfer of federative rights , where player consent is key in order to takeeffect. (case: “Simón, Juan E. c/Club de Gimnasia y Esgrima de la Plata s/Cobro Ordinario”,12/23/2013, published on www.ijeditores.com.ar.18 An interesting case arose regarding the valid transfer of economic rights although the contract’sprovisions contain federative and economic right when the transferring party was not a club. In thatsense, Chamber C of the National Commence Courts of Appeal has validated a contract where aclub was transferring 50% of a player´s economic rights to a company. Although contract clausesliterally mentioned the transfer of federative rights, the contract shall be interpreted as a whole andthe actual will of the parties must be taken into account, as parr. c of Section 86 of the AFA Statutesays that transfers of federative rights can only take effect when the receiver is a federated club orsome organized football association, and the value transferred in the contract is the credit derived


5.2 Work permit for foreigners

Foreign citizens must have a work permit to work in Argentina. Artists and athleteshave similar requirements. An entrance permit has 30 days of validity and, afterthis, a visa is necessary. A letter of intent or contract must be submitted prior toarrival.

5.3 Training compensation systems

There is no training compensation system other than the one derived from theemployment relationship.

5.4 Player agents (including some examples of private regulations, e.g.football)

Player agent must be duly authorized to practice and are subject to particularcontrol from the AFA. Agents can represent players or clubs, but they cannot havean official position in the AFA, FIFA or similar institutions. Practicing lawyers inArgentina are not subject to this referred authorization when they represent playerinterests.

Applicants for player agent have to be individuals; hold Argentineannationality, with legal address in the country; or in the case of foreigners to havebeen residing in the country for a minimum of 2 years. They are also required toprove that they are fit and proper persons who have not previously engaged ininappropriate behaviour.

As stated before, only individuals may apply for a license. Thus, theadmission of applications from companies, associations or clubs is forbidden. Inaddition, an insurance policy for damages is required.

The relationship between players and agents must be registered in writing.Contracts have to meet the AFA’s rules specifying the agent’s compensation anddue date. Both the AFA and FIFA provide the list of authorized agents.

All player agents who fail to comply with their obligations in accordancewith AFA and FIFA regulations are subject to sanctions from the AFA Committeeon this matter, which may impose: (i) A warning or reprimand, (ii) a fine, (iii) asuspension of license, or (iv) the withdrawal of a license.

These sanctions shall be cumulative and imposed by the Committee orFIFA itself, and are considered final and non-appealable.

____________________from the valuation of federative rights on a future transfer of that player to another club” (Case: “HazSport Agency SA c/Asociación Atlética Argentinos Juniors s/Ordinario” 3/11/2014, published onwww.ijeditores.com.ar.


6. Social security principles (unemployment and pensions)

6.1 Injury, illness, and disability

This topic is based on previous reference to “Medical issues” in Section V.Health care for players is mandatory and must be provided by employers

wherever it is needed due to illness or accident incurred during working duty, asprovided by Laws 23660, 23661 and 24557.

In the event of disability caused by a work related accident, compulsoryinsurance will grant a fixed financial support, plus rehabilitation treatment and medicalattention, as set by Law 24557.

In addition to the public health system, football players have right to havemedical insurance in accordance with Law 23660 and 23661.

6.2 Unemployment benefits

As consequence of their status as dependent employees, professional football playersare insured against unemployment. This is only during a transitory and limitedperiod of time and grants a monthly sum of money and free medical insurance.However, it is necessary to point out that the benefit is not proportional to thefootball player’s income, it being therefore generally of little help.

6.3 Pension schemes

The pension system in Argentina is based on a social insurance program for workersand self-employed people. It is funded by employers, employees and the government,which is also in charge of its administration. Retirement age benefit is granted at 60years of age for women and 65 for men with 30 years’ of contributions. However,there are specific exceptions considered to this, for example, full disability.

There is a subtle difference in pension benefits depending on the worker’sstatus (employee or self-employed). Self-employed people are only able to applyfor a lower benefit amount, whereas employees are granted a full pension schemein regard to their salary.

In the case of football players, despite their employee status, it has beenestablished that they contribute as self-employed workers. According to Decree1212/2013, football players are subject to particular a contribution to the pensionsystem, which is based on a reference salary and not on the actual one; and alsofunded through a percentage of the money involved in transfers and broadcasting.Therefore, retirement benefits for football players become similar to the ones grantedto self-employed workers.


6.5 Club insolvency and player protection

According to Law 24522 any person or legal entity involved in a bankruptcyprocedure must meet stipulated requirements and regulations. In the case of employerinsolvency, the majority of worker claims are protected by statutory creditorprivilege, even over state and Social Security claims, except for those assets protectedby mortgage or similar privilege.

In the case of club insolvency, Law 25284 was enacted in 2000, addressinga special system to prevent sport entity bankruptcies (only for first degreeassociations such as clubs), in which an Administration Trust is to be created underjudicial control.

Under this procedure, clubs with a pending or declared state of bankruptcybut with enough assets to proceed with their activities are eligible for such alternative.

The trust shall be terminated if it is impossible to create enough newincome to satisfy the amounts needed for the usual course of business of the entity,or if it is impossible to determine the entire list of beneficiaries in the bankruptcyprocedure.

7. Labour dispute settlement

From a labour law point of view, disputes between employees and employers areheard and decided by courts. There is no specific institution with competency forsport in such matters. Most of the provinces, as well as the nation, have establisheda specialized jurisdiction in ordinary justice to deal with individual labour disputes.

The Supreme Court does not usually have jurisdiction in labour disputes.It can, however, hear complaints when a law or decree is challenged on constitutionalgrounds.

The rules of procedure may vary depending upon the jurisdiction. Forinstance, in the city of Buenos Aires complaints are mainly in writing, while theyare oral in some provincial jurisdictions.

In those disputes held within the jurisdiction of the City of Buenos Aires,there is a mandatory mediation procedure that is to be complied before a claim canbe submitted to ordinary justice. Besides that, voluntary arbitration is also availableto parties.

Those disputes that arise from the game of football are subject to theSport Discipline Court at AFA.19

Conclusion

A better understanding of the football business and the interaction between clubsand athletes is crucial to promoting a proper law-making process as well as the____________________19 Delfino, Javier H., European Sports Law and Policy Bulletin – International and ComparativeSports Justice, Michele Colucci and Karen L. Jones eds., 2003, 250.


creation of a Court of Sports able to solve disputes regarding transfers, sanctions,and eligibility for the national football team.

Time is critical in this activity, bearing in mind that football players have ashort working life, at least at the current idea of a competitive level (a sportingcareer does not usually go past the age of 40, except for a few cases).

The restriction on nationality should be amended in order to comply withfundamental rights granted by the Federal Constitution.

Social security benefits must be reviewed in order to comply withconstitutional principles of universal coverage, based on an equality principle whenit comes to contributions.

The proper approach to analyze every aspect of the relationship betweenprofessional football players and the relevant club must be from the labourperspective. It must be highlighted that mandatory regulation (as well as those ofemployment) is also a key factor.

Despite this obvious statement, it should always be kept in mind thatfootball players are employees after all, and they should therefore receive effectiveprotection by the Government.


EMPLOYMENT RELATIONSHIPS AT NATIONAL LEVEL:BELGIUM

by Frank Hendrickx *

SUMMARY: Introduction – 1. Employment regulation and football structures – 2.Individual employment relations in professional football – 3. Medical and dopingissues – 4. Transfer of players – 5. Social security – 6. Labour dispute settlement

Introduction

In Belgium, football is one of the major sports in the country. Not only from thebroad public, but also from the perspective of the legal system, football attracts alot of attention. The famous Bosman-case originates from a Belgian legal dispute,like other European sports cases.

Football is practiced at amateur level as well as at professional level. Thelaw follows this distinction to a certain extent. While labour law applies to theemployment relationship between club and player in a professional context, there isspecific sport legislation, such as the Act of 24 February 1978 concerning theemployment contract for sports professionals (the Sports Professionals Act). In thefederal system of Belgium, the regions (Communities) are competent for sports. Inthe Flemish Community, there is a Decree of 24 July 1996 with regard to the statusof the non-professional athlete. It applies to athletes who do not qualify asprofessionals under the Sports Professionals Act. It includes amateur-level footballplayers, even those who obtain remuneration, to the extent that the annual grossremuneration is lower than the threshold referred to in the Sports Professionals Actand which will be discussed below.

1. Employment regulation and football structures

Employment in professional football in Belgium is mainly undertaken in theframework of an employment contract. It means that football contracts are largelydominated by provisions of employment law. A central piece of legislation is theAct of 3 July 1978 on employment contacts (the Employment Contracts Act).____________________* Professor of labour law and sports law, University of Leuven.

40 Frank Hendrickx

Furthermore, as has been mentioned above, there is the Act of 24 February1978 concerning the employment contract for sports professionals (the SportsProfessionals Act). By sports professionals is meant those persons who undertaketo prepare themselves for, or take part in, a competition or sports spectator eventunder the authority of another person in return for remuneration exceeding a certainlevel or threshold.1 The Sports Professionals Act applies to professional footballplayers whose annual gross remuneration is higher than a certain threshold, asdetermined by Royal Decree on a yearly basis. With the Royal Decree of 27 May2014 this threshold is set at a remuneration of 9.400 Euro gross per year for theperiod of 1 July 2014 until and including 30 June 2015.2

Next to this legislation, there is a practice of concluding collective agreementson football employment in the sectorial Joint Labour Committee n° 223 competentfor sports.3 At the time of writing, the collective agreement of 2 July 2013 governsthe contract of professional football players and their clubs to the extent that theyare regulated by the Sports Professionals Act. This ‘football collective agreement’is concluded for a limited duration of time and expires after 30 June 2015. Itsucceeds and replaces previous football collective agreements which are usuallyconcluded for a fixed-term. Since the football agreement is concluded in a JointCommittee which has a national competence in the sports sector, it is applicable inthe whole country.

Finally, specific regulations within the football associations apply concerningthe status of players and clubs. Professional (but also amateur) football in Belgiumis organised by the Royal Belgian Football Association (the RBFA), who was foundedin 1895. By adhering to the Royal Belgian Football Association, clubs and playersagree to respect the RBFA regulations.4 Furthermore, international footballregulations, such as the FIFA Regulations, similarly intervene.

It is obvious that labour law provisions interfere with the various specificinternal football rules and regulations concerning clubs and players to the extentthat they affect the employment relationship or employment rights. It makes theemployment contract between club and player, often indicated as the ‘footballcontract’, a hybrid or double-layered construct. On the one hand, the contract isgoverned by employment law provisions, while on the other hand it is ruled by thefootball regulations of the respective national and international football organisation.The general rule, however, is that employment law provisions are of a mandatorynature and hierarchically of a higher rank. Therefore, football regulations governingthe contract between club and player, can only apply in so far as they are inaccordance with the applicable employment legislation or other mandatory legalprovisions.____________________1 Article 2 Sports Professionals Act.2 Royal Decree 27 May 2014, Off. Gaz. 20 June 2014.3 This Joint Labour Committee was established by the Royal Decree of 10 August 1978, Off. Gaz. 17October 1978.4 Article 504.1 Regulations Royal Belgian Football Association, http://extranet.e-kickoff.com/project/publiek/ reglement/reglement_nl.pdf, consulted on 19 October 2011.

Employment relationships at national level: Belgium 41

2. Individual employment relations in professional football

A. The employment contract

1) Definition

Under Belgian labour law, an employment contract is defined as a contract wherebya party, the employee, undertakes the obligation to perform remunerated work,under the authority of another party, the employer. This definition can be found inthe Employment Contracts Act of 3 July 1978 which gives a definition of thecontract of employment. The view is, therefore, that an employment contract ispresent if the elements ‘work, remuneration and subordination’ are present. It isthe latter characteristic, working under the authority and subordination of anotherparty, that distinguishes the employee worker from the self-employed worker, andwhich will be important in order to determine whether parties are bound by anemployment contract or not.

Subordination is a legal concept. It is established by the case law that themere ‘legal possibility of authority’ of one party over another is sufficient in orderfor subordination to be present in a given case. It is not necessary that authorityshould actually be exercised. It is also accepted that a large degree of autonomy ofa worker in the performance of his obligations can be reconciled with the existencesubordination, if the authority is exercised with regard to the material organisationof the work.

The determination of the presence of subordination is a question of factand is subject to an extensive amount of case law. The case law has developedover the years and, traditionally, labour courts take a number of objective factorsinto account. These factors include: the exercise of control and supervision, areporting obligation, organisation of the economic activity by one of the parties,control over working hours, a requirement to justify presence or absence, or anexclusivity obligation. It is accepted that usually a number of elements indicatingtowards subordination should be demonstrated for an employment relationship tobe present.

Since the seventies, the question has been raised how relevant thequalification of the parties of their agreement should be in the determination of theexistence of subordination. This refers to the question whether a court is bound bythe qualification of a contract as a civil law based ‘service agreement’, althoughthere are elements that point in the direction of a subordinate relationship. Thetraditional view is that a court is not bound by the parties’ qualification if, in theexecution of the contract, the facts demonstrated elements that referred to anemployment contract. This gives the court the possibility of re-qualification of thecontract.5___________________5 Cf. W. Rauws, ‘De kwalificatie van de (arbeids)overeenkomst’, J.T.T. 2006, 93.

42 Frank Hendrickx

The court’s possibility of requalifying an agreement into an employmentcontract, has been made more difficult since a judgment of the Supreme Court(Cour de Cassation) of 23 December 2002.6 In this judgment, the Supreme Courtstates “that, in case the parties have given a qualification to their agreement, thejudge deciding on the facts, cannot substitute this by another qualification, if , onthe basis of the factual elements presented to him, it is not possible to exclude thequalification given by the parties”.7 The Supreme Court has repeated its case lawseveral times.

A recent Programme Act8 of 27 December 20069 contains a chapter on the‘regulation of the employment relationship’. It contains measures against so-called‘fake self-employment’, i.e. situations whereby persons qualify their employmentrelationship as a service contract while in reality they are working in a subordinaterelationship. The 2006 Act codifies the case law of the Supreme Court. The Actalso enumerates the fundamental criteria allowing an employment contract to bedistinguished from a self-employed relationship. Finally, the Act provides for a‘ruling commission’ to which parties can refer to for an administrative ruling on thenature of the employment relationship.

Article 333, §1 of the Programme Act of 27 December 2006 provides thatthe general criteria that make it possible to assess the presence or absence of asubordinate relationship are: the intent of the parties as it is expressed in theagreement; the freedom to organizes working time; the freedom to organize thework; the possibility to exercise hierarchical control.

In practice, there is few doubt in Belgian labour law that professional footballplayers are to be considered as employees and their clubs as employers.

2) Fixed-term contract

Belgian employment contract law knows two kinds of contracts according to theirduration: contracts for an indefinite period and contracts for a fixed-term.10 Belgianemployment law considers employment under a contract for an indefinite period oftime the most desirable protection for employees. This is shown by the fact thatthe conclusion of fixed-term contracts of employment is subject to various formalconditions in order to be considered valid.

As a rule, in practice, contracts with professional football players are fixed-term contracts of employment.

In this context, the relationship between the Professional Sports Act and___________________6 Cass. 23 december 2002 (N° S010169F), J.T.T. 2003, 271; Or. 2003, afl. 4, 2.7 “Attendu que lorsque les parties ont qualifié leur convention le juge du fond ne peut y substituer unequalification différente lorsque les éléments soumis à son appréciation ne permettent pas d’exclure laqualification qui avait été donnée par les parties”.8 This is an Act that contains a regulation of various subjects which do not necessarily show aconnection.9 Off. Gaz. 28 December 2006.10 Article 7 Act of 3 July 1978 (Employment Contracts Act), Off. Gaz. 22 August 1978.


the Employment Contracts Act is at issue. The Professional Sports Act supportsthe use of a fixed-term contract, still leaving the possibility to conclude a contractfor indefinite term in professional sports as well, but prohibits long-term fixed-termcontracts. According to the Sports Professionals Act, if the contract is concludedfor a fixed-term, the contract can only be concluded for a maximum period of fiveyears, although is renewable.11

The football collective agreement of 2 July 2013 applicable to professionalfootball players, repeats the rule that contracts can only be concluded for a maximumduration of 5 years. It also adds a minimum duration for the contract. The minimumcontract period should be a contract term which runs until the end of the season(30 June) during which the contract was signed.12

A fixed term contract of employment needs to clearly indicate the period oftime during which it needs to be executed. In case the contract does not correspondto these requirements, the employment contract remains valid as such, but it isirrefutably presumed by law to be a contract of employment for an indefiniteperiod of time.13 However, it must be noted that some collective agreements thathave been concluded at sectoral level and have been declared universally applicable,may deviate from the rule that a written contract is needed for fixed-term work.

3) Contract in writing

Unlike contracts for an indefinite period, fixed-term contracts need to be formallyconcluded in a written document and need to be agreed upon for every employeeindividually.14 The law also provides that the fixed-term contract has to be signedby the parties prior to the employee starting to perform the job.15 The law uses thewords “before the entry into service” of the worker. In case the contract is alreadybeing executed, it is, according to the case law of the Supreme Court, impossible toconclude a fixed-term contract for that work.16

The Sports Professionals Act repeats, at least to a certain extent, the generalemployment law provisions and provides that the fixed-term contract of the sportsprofessional must be concluded in writing in as many copies as there are partiesconcerned and signed by those parties. One copy shall be handed to the sportsprofessional concerned. Failing a written contract meeting these requirements, or ifone exists but no copy had been handed to the sports professional, the provisionsof contracts concluded for indefinite period shall apply.17 It would appear from thisprovision that the Sports Professionals Act imposes less strict obligations to___________________11 Article 4 Sports Professionals Act.12 Article 13 collective bargaining agreement of 2 July 2013.13 Article 9 Employment Contracts Act.14 Article 9 Employment Contracts Act.15 Article 9 Employment Contracts Act.16 Supreme Court 7 December 1992, RW 1992-93, 1375; Supreme Court 20 September 1993, Soc.Kron. 1994, 30.17 Article 4 Sports Professionals Act.

44 Frank Hendrickx

fixed-term contracts as the general Employment Contracts Act since it is not requiredthat the fixed-term contract is signed prior to the entering into service of sportsprofessional.

4) Flexibility

According to the Sports Professionals Act, fixed-term contracts can be concludedfor a maximum period of five years and they are renewable, without further limitationsaccording to the Act.18 However, the renewal of fixed-term contracts in generalemployment law normally entails the assumption that the parties have concludedan employment contract for indefinite term, unless there is a ‘justified reason’ forthe renewal, or when strict minimum and maximum rules are respected sometimesrequiring a prior permission of the labour inspectorate.19 It would thus seem thatthe Sports Professionals Act has a more flexible approach.20

5) White and blue collar workers

According to the Act of 24 February 1978 (Sports Professionals Act), every contractconcluded between a sports professional and an employer will be deemed to be acontract for white-collar workers, notwithstanding and regardless of the title givento the contract, and will be governed by the provisions of the Sports ProfessionalsAct.21

The distinction between white-collar and blue-collar workers has historicalorigins. Although the distinction has become less relevant in Belgian employmenttermination law, it is still present in the current Employment Contracts Act of 3July 1978. Also collective bargaining practices and institutions have been developedseparately for blue-collar and white-collar workers. A white collar worker is definedas an employee who mainly performs manual work. A blue collar worker is definedas an employee who mainly performs intellectual work.22

The distinction has raised many legal disputes and it is commonly acceptedthat it is not an objectively justified distinction anymore to distinguish employeeswith regard to employment protection. Since the distinction is partly based on orconfirmed by the Employment Contracts Act, there has been a problem under theConstitution in view of the equality principle. One of the most important differencesbetween the two categories of workers concerned the protection against dismissal.

The issue was referred to the Constitutional Court for the first time in the___________________18 Article 4 Sports Professionals Act.19 Articles 10 and 10bis Employment Contracts Act.20 Cf. O. Vanachter, De vrijheid van contracteren in F. Hendrickx (ed.), Fundamentele rechtenvan de sportbeoefenaar, Leuven, Peeters, 1996, 36.21 Article 3 Act of 24 February 1978 relating to contracts of employment for sports professionals,Off. Gaz. 9 March 1978.22 Article 2 and 3 Employment Contracts Act.


early nineties. However, only in a landmark decision of 7 July 2011 the ConstitutionalCourt23 held that the legislative norms providing for different notice periods violatethe constitutional equality principle. The Court nullified the relevant provisions ofthe Employment Contracts Act. The legislator interfered with the adoption of theAct of 26 December 2013 concerning the unified status between white collar andblue collar workers. There is still debate about the consequences of the decision ofthe Constitutional Court and the question whether the legislator has correctly andtimely reacted to it.

The relevance of the discussion for football contracts is, however, limited.As will be explained further, the termination of the employment contract is subjectto specific rules under the Sports Professionals Act. Nevertheless, also the provisionsof the Sports Professionals Act are under discussion in light of the Constitution, aswill be discussed further in this contribution.

6) Constitutionality of the Sports Professionals Act

In light of the constitutional discussion regarding white collar and blue collar workers,questions arise whether the legislator can still define (other) different categories ofworkers to which deviating legal regimes would be applicable. In light of this, arecent employment case has dominated the legal debate in the football world. Thecase is known as the so-called Dahmane-case. The case will be explained below.

B. Rights and obligations

The rights and obligations of the parties to the football contract is self-evidently amatter of negotiation of the parties. However, both the legislator as well as theFootball Collective Agreement have provided for specific conditions that areapplicable to the football employment contract. A few examples are discussedhereafter.

1) Protection of minors

According to the Sports Professionals Act, a professional (football) contract canonly be concluded after the end of the age at which a child needs to go to school ona full-time basis. This means that a professional contract can only be concluded inprinciple as from the age of, depending on the school situation, 15 or 16.24

___________________23 Constitutional Court 7 July 2011, JTT 2012, 1, annotated by JOASSART, P.24 The contracting age of 15 is dependent on the schoolpath that the child has followed. If the child didnot yet pass his first two years of the secondary school, the contracting age is 16 (cv. Law on schoolobligation of 29 June 1983, State Gaz. 6 July 1983).

46 Frank Hendrickx

2) Remuneration

The collective bargaining agreement for professional football of 2013 provides thatthe salary of a professional football player is composed of the fixed monthly salary,match premiums, other contractual payments, as well as advantages in kind suchas the private use of a car or a dwelling.25

The collective bargaining agreement provides for various conditions withregard to pay.

3) Non-compete clause

Non-compete clauses in the employment contract with a sports professional areconsidered to be null and void. However, when the contract is terminated by theclub for serious cause, or by the player without serious cause, the player will notbe able to take part in a sport competition in the same series, category or division,during the current season.26

4) Option clause

De option clause is a contractual provision that is specific to the football sector.The Football collective agreement provides that unilateral option clauses are notvalid. However, according to this collective agreement, the option clause is notconsidered to be unilateral under certain conditions.27

For example, the option clause must be agreed upon in writing and must bedrafted for every employee individually at the latest on the moment of his entryinto service, and it must form an integral part of the contract. The option clausemust also provide for the duration, the maximum duration for using of the option,and the applicable salary increase, or refer to the applicable collective agreementfor this.

The option clause, when used by the other party, must go along with asalary increase of at least 15% of the fixed remuneration and 5% of the match- orselection premium, or 20% of the fixed remuneration, whereby the increase doesnot need to exceed the amount of 20.000 Euro.

C. Termination of a fixed-term professional football player contract

1) Introduction

As is the case in common Belgian employment law, when an employment contractis concluded for a fixed term, the expiry of the term automatically terminates the___________________25 Article 7, Collective Bargaining Agreement of 2 July 2013.26 Article 8, Sports Professionals Act.27 Article 15, Football collective agreement.


contract which means that there is no need to give prior notice before the expirydate. So, when the contract is ended because of the expiry of the contract, nocompensation is due and the player is free to leave the club.

Moreover, there is no need to give a reason for not renewing the contract.When the contract is ended before the expiry of the contract, the situation in whichno justifying grounds were at hand must be differed from the situation in which thecontract is ended for justifying grounds.

The Sports Professionals Act provides that if a contract has been concludedfor a fixed term, its termination before the date of expiry of the contract withoutserious grounds shall give the disadvantaged par

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